What do I need to know about my HOA’s bylaws?
In late October, my roommates and I woke to an emailed rebuke from our landlord for doing something we thought was going to improve our lives.
We’d moved the recycling and trash bins from our garage to our gated yard, hoping to solve the dual nuisance of having to back out our cars at 6 a.m. just to wheel the trash out and the stench from two garbage cans baking in the Houston sun.
“Can you please put the trash cans in the garage,” our landlord wrote. “I’m getting complaints from the homeowners association about them being in the front yard.”
Some HOA complaints might be warranted — blocking a shared driveway with a vehicle, for example — while others seem a little extreme, like calling the police on kids with lemonade stands and only allowing two colors of tram
poline covers.
So what do you do when the association is coming for the unauthorized row of lilies in your garden?
An estimated 5.6 million Texans lived in a community association in 2018, according to the Community Associations Institute.
There are three types of community associations:
• Condominium associations, where members own their units and jointly manage and own the common spaces with other association members.
• Homeowners’ associations, where members own the residence and the property it sits on, and the association owns and manages the common spaces.
• Property owners’ associations, where homeowners, business owners and property managers can be part of the association. POAs may include HOAs and COAs.
No state agency governs community associations in Texas, although they may rely on the Community Associations Institute or Texas Community Association Advocates for standards and lobbying protection when the state legislature meets.
While there are several state laws requiring sellers to notify homebuyers that the property they’re buying is tied to an HOA, it’s possible to close on a home without knowing that it’s within an HOA, according to the State Bar of Texas. And yes, the homeowner is still beholden to those HOA rules because it is a binding contract, said Chevazz Brown, an attorney and partner at Jackson Walker who specializes in land management and ownership disputes.
“Those docs are typically recorded in public record as part of the development of the neighborhood,” Brown said.
You can start digging for your HOA’s bylaws and property records on the Harris County Clerk website by searching under the subdivision name and filtering by “Restr” (for restrictions) under “Instrument Type”. The subdivision name might be abbreviated in a wonky way, so start with a generic term. I didn’t find my HOA’s documents until I wrote in just the neighborhood’s name — the rest of the association name had been abbreviated.
(Or you can just very nicely write to the HOA and ask for a copy of the rules.)
If a property owner leases out the unit to a tenant, it’s the owner’s responsibility to ensure that the tenant adheres to HOA rules. An HOA may require that the landlord give a copy of bylaws to the tenants, but it’s not legally required to provide one.
Conflicts arise when residents feel like they shouldn’t have to pay their dues, said Nina Tran, a partner at Hoover Slovacek and director of the Texas Community Association Advocates. In addition to monthly HOA fees, an association might want to impose special fees for major repairs or new amenities.
Clashes over an HOA’s process for approving home modifications are also a common source of complaints.
When you violate an HOA rule, the association sends a letter or an email notifying you of what rules you’ve violated and applicable fines. (In the case of rentals, the homeowner is penalized, and it’s their discretion to pass on the costs.)
The most extreme cases might lead to hefty fines or foreclosure, raising questions about how far an HOA can reach. In Texas, different laws govern condominium associations and subdivision associations (the latter is more common, referring typically to standalone homes).
HOAs aren’t immune from state and federal laws. Under the Fair Housing Act, they can’t discriminate based on a protected class. And changes in Texas law in 2019 protect homeowners and renters’ rights to display political signs in their yard, to lawfully possess a firearm on HOA grounds and allow children to have lemonade stands (yes, seriously — a new law prohibits HOAs from restricting kids from selling non-alcoholic beverages in front of their homes).
Argung that an HOA infringes on individual freedoms and rights, though, is tricky. Even if a homeowner argues that they don’t agree to what’s in the declaration, they’re bound by the Texas Property Code to follow it.
The association has to act strictly according to their rules and they shouldn’t expect to impose rules not written in their documents — the Texas Supreme Court has backed that up by asserting that covenants must be explicit in what homeowners can and can’t do.
Whether it’s a dispute over a pet pig or an accumulation of maintenance payments, homeowners and HOAs have several chances to address the issue before taking it to court. Legal experts don’t recommend just skipping out on paying your dues.
An association will send multiple notices about violations before taking an action like fining a member, Tran said. In a case where you’ve fallen behind on association payments, most HOAs are willing to work on an installment plan. Putting a lien on a home and foreclosing on it is very unlikely (although the rules differ when it comes to condominium associations).
But if it’s a matter of an HOA misappropriating funds or failing to make repairs, and the association hasn’t budged since you’ve nudged them about it, it might be time to consider legal aid.
Homeowners can call the Greater Houston Chapter of the Community Associations Institute hotline for a second opinion on covenants and restrictions at 832-251-1874. To find an attorney who handles HOA disputes, visit the State Bar of Texas’ website and look for an attorney who specializes in property owners association law.